Denying a man a
continuance when, at the time of the scheduled hearing, his attorney was in
trial constituted a due process violation, the Fifth District Court of Appeal
has ruled.

The man,
identified in the opinion as “Daniel E.,” is the father of three boys who were
declared dependents of the court in 2014 due to recurrent domestic violence
between the parents. Last Aug. 19, a 12-monthg review hearing was continued
because his lawyer was in trial and, on Sept. 16, another request for a
continuance was made for the same reason.

The lawyer who
appeared to make the request said he anticipated that the father’s attorney
would be available in the afternoon.

Fresno Superior
Court Judge Brian M. Arax said he would proceed to rule but that the attorney
of record could cross-examine the social worker in the afternoon, and that he
might reconsider his ruling in light of what was elicited. The lawyer making
the appearance said he could not promise the appearance that afternoon of the
attorney of record, and noted that a witness who was needed had not yet been subpoenaed.

Arax terminated
the father’s reunification services and set a hearing on whether to sever
parental ties.

Representing
himself, Daniel E. filed a petition for a writ. It was granted Monday.

An unpublished
“By the Court” opinion said:

“We conclude the
juvenile court abused its discretion in not continuing the contested 12-month
review hearing. Counsel’s reason for the request─i.e., father’s
attorney was in trial─constituted good cause to continue the
hearing. Further, counsel was not prepared to represent father in a
contested hearing and the court knew that. In addition, there was no
doubt that father wanted a contested hearing. He attended the hearings
and identified witnesses he wanted to call. By not continuing the
hearing, the juvenile court deprived father the right to protect his interest
in regaining custody of his children by challenging the state’s evidence.
The court denied father due process.”